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THE RELATIONS BETWEEN THE UNITED STATES 
AND PORTO RICO 

JURIDICAL ASPECTS 

By PEDRO CAPO RODRIGUEZ 



[Reprinted from the American Journal of International Law 
Vol. XIII, Number 3, July, 1919] 



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THE RELATIONS BETWEEN THE UNITED STATES AND 

PORTO RICO.* 

JURIDICAL ASPECTS. 
THE INSULAR CASES AND THE STATUS OF PORTO RICO. 

Downes v. Bidwell. 80 This is really the most important judgment 
in all the Insular Cases so far as a determination of the present status 
of Porto Rico is concerned. It is interesting because in it the now 
famous doctrine of non-incorporation is developed. It will be well, 
however, to state at the outset that in this case there was no majority 
opinion of the court and that the decision was reached merely by the 
concurrence of a majority of the judges in what is styled in the sylla- 
bus of the case as the conclusion and judgment of the court. 

In view of the great diversity of opinion evinced by the judges in 
this case, as will later appear, it was regarded at the time by very able 
lawyers and commentators of note as a very doubtful precedent which 
the court might not feel in the future bound to accept as the settled 
law of the land. So far, however, it has stood the test of time, and 
although the recent passage of the so-called Jones-Shafroth Act, ex- 
tending to Porto Ricans a large measure of self-government and the 
privilege of American citizenship, 81 seemed to reopen the question of 
the juridical status of Porto Rico and require the rejection or modifi- 
cation of the doctrines laid down or relied upon in this important 
decision, its conclusions have been affirmed and ratified and are largely 

*This is only a part of a series of articles on the same subject appearing in the 
American Journal of International Law, Vol. IX, pp. 883 et seq., Vol X, 
pp. 65, 312, Vol. XIII. pp. 483-525. 

80 182 U. S. 244. 

81 Public No. 368, 64th Cong. The text of this law will also be found in the 
Supplement to this Journal, Vol. XI, pp. 66-93; see "Some Historical and Polit- 
ical Aspects of the Government of Porto Rico, in The Hispanic-American Historical 
Review, Vol. II, No. 4. 

483 



484 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

accepted at the present time as a correct expression of the national 
sense. It is at any rate the only authoritative declaration of the pres- 
ent status of Porto Rico so far made by any competent branch of the 
government. 82 It is therefore important to examine this decision 
somewhat at length in order to ascertain and determine the present 
status of the Island and the particular doctrines upon which that 
status is supposed to be founded. 

The ostensible purpose of the case under consideration was to test 
the constitutionality of the Foraker Act, 83 and to recover back certain 
duties exacted and paid under protest upon merchandise brought into 
the port of New York from Porto Rico after the passage of that Act. 
The duties in question were exacted under Section 3 of the Act, which 
provided, "that on and after the passage of this Act all merchandise 
coming into the United States from Porto Rico and coming into Porto 
Rico from the United States shall be entered at the several ports of 
entry upon payment of fifteen per centum of the duties which are re- 
quired to be levied, collected and paid upon like articles of merchan- 
dise imported from foreign countries, ' ' 84 and the question briefly 
stated, was whether Article I, Section 8, of the Constitution of the 
United States, providing that "all duties, imposts and excises shall 
be uniform throughout the United States ' ' was applicable to this case ; 
that is to say, whether this particular provision of the Constitution 
must be considered as controlling the action of Congress when legis- 
lating on the subject for a territory situated as Porto Rico was. 

This case differs from the other two already considered 85 in that 
here the test is not, as there, whether Porto Rico was or was not a 
foreign country, either in the international or in the constitutional 
sense, but rather whether the Island had become an integral part of 
the United States, so as to be included within the purview of the con- 

82 The latest confirmation of this status is to be found in the People of 
Porto Rico et al. v. Jose Muratti, and the People of Porto Rico v. Tapia, recently 
decided per curiam by the Supreme Court on the authority of the case under 
consideration and other cases mentioned in the docket. (245 U. S. 639.) 

83 U. S. Stat, at Large, Vol. 31, p. 77. 

84 See "Some Historical and Political Aspects of the Government of Porto 
Rico," supra, note 81. 

85 This Journal, Vol. X, p. 317 et seq. 



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RELATIONS BETWEEN THE UNITED STATES AND PORTO RICO 485 

stitutional provision aforementioned, and the question therefore in- 
volved, in substance, a determination of the juridical status of the 
Island from the point of view of constitutional law. 

Internationally, there could hardly be any question that Porto 
Rico was, and is, by virtue of the treaty of cession, an integral part 
of the United States. Upon the formal exchange of the ratifications 
of that treaty Porto Rico ceased to be a Spanish province; it ceased 
to be Spanish territory subject to the Crown of Spain. In contem- 
plation of law, the treaty of cession operated to sever all political con- 
nections between Porto Rico and the mother country; so that, in 
respect to Spain, Porto Rico became a foreign country, its Spanish 
nationality being entirely destroyed by the transfer. It is clear that 
the same act which divested the Island of its Spanish nationality gave 
to it, as a sort of international compensation, the nationality of the 
United States. That such result was equally contemplated by the 
high contracting parties is apparent in the treaty itself, where they 
repeatedly speak of the future "nationality of the territory" over 
which Spain relinquished or ceded her sovereignty. 86 If this was not 
the result contemplated by them, what then was the nationality re- 
ferred to in this expression ? In the case of Cuba it might be assumed 
that the contracting parties contemplated Cuban nationality, because 
as to that island Spain was only relinquishing her claim of sovereignty 
over and title to the island. 87 But as to Porto Rico, could it be said 
that the contracting parties had in mind a Porto Rican nationality? 
Evidently not, because the words of the treaty in respect to this Island 
leave no room for doubt as to the fact that an absolute transfer of sov- 
ereignty was intended. The words of the treaty are : ' ' Spain cedes to 
the United States the Island of Porto Rico. ' ' 88 This provision, accord- 

86 See specially Article IX. 

8 ? Article I of the Treaty of Paris contains the following provisions : "Spain 
relinquishes all claim of sovereignty over and title to Cuba. And as the Island 
is, upon its evacuation by Spain, to be occupied by the United States, the United 
States will, so long as such occupation shall last, assume and discharge the 
obligations that may under international law result from the fact of its occupa- 
tion, for the protection of life and property." 

88 Article II of the Treaty of Paris is in full as follows : "Spain cedes to the 
United States the Island of Porto Rico and other Islands now under Spanish 



486 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

ing to well established principles of international law, necessarily im- 
plies an absolute transfer of sovereignty over the ceded territory and 
a complete change in the nationality thereof in favor of the acquiring 
state. Thus in respect to Porto Rico, the nationality mentioned in the 
treaty can be no other than the nationality of the United States. The 
Supreme Court itself, in spite of the great division of opinion among 
its learned members upon other aspects of the whole question, has 
expressly and unanimously declared in Gonzales v. Williams, 89 which 
is another of the Insular Cases, that by the act of cession the nation- 
ality of Porto Rico became American instead of Spanish. It follows 
therefore that Porto Rico must be internationally considered as incor- 
porated into and forming an integral part of the U nit,p fl Sta/tes 

But while there cannot be much doubt upon these simple proposi- 
tions affecting the status of Porto Rico in an international way, it is 
a matter of much perplexity, in view of the great diversity of opinion 
expressed in the case under consideration, to determine the more com- 
plicated question of the present status of Porto Rico in the constitu- 
tional sense. It may be observed that in determining, as in this case, 
whether a specific provision of the Constitution is applicable to a given 
territory, it may not be absolutely necessary to fix the status of such 
territory in an affirmative manner; it may be enough, perhaps, to 
negative the existence of the particular status required by the pro- 
vision in question. 

Thus, the views of Mr. Justice Brown and Mr. Justice "White, while 
conflicting as to the reasons upon which they base their conclusions, 
reach the same decision as to the inapplicability of the clause. Mr. 
Justice Brown makes his decision depend on the proposition that the 
clause in question is only applicable to the States as such ; that Porto 
Rico is not a State, and that, in consequence, the said clause is not 
applicable to that Island. Mr. Justice White, and with him Mr. Jus- 
tice Shiras and Mr. Justice McKenna, on the other hand, declares, that 
the said clause is applicable not only to the States, but also to a terri- 

sovereignty in the West Indies, and the Island of Guam in the Marianas of 
Ladrones." See in this connection this Journal, Vol. IX, pp. 896-897; Vol. X, 
pp. 67-69, 72-74. 
89 192 U. S. 1. 



RELATIONS BETWEEN THE "UNITED STATES AND PORTO RICO 487 

tory which has been incorporated into and forms a part of the United 
States; but they hold that Porto Rico has not been incorporated and 
therefore the clause in question has no application to it. Mr. Justice 
Gray, by a somewhat different line of reasoning, follows the conclu- 
sion of Mr. Justice White and his associates, while Mr. Chief Justice 
Fuller, Mr. Justice Harlan, Mr. Justice Brewer and Mr. Justice 
Peckham dissent upon the ground that the revenue clause in question 
was applicable throughout the United States, that Porto Rico was a 
part of the United States, and therefore, that the said clause was 
applicable to Porto Rico, at any rate after the passage of the Foraker 
Act. Mr. Justice Harlan expressly declared in a separate opinion 
that Porto Rico became, after the ratification of the treaty with Spain, 
a part of the United States in respect to all its territory and people, 
and that Congress could not thereafter impose any duty, impost or 
excise with respect to that Island or its inhabitants which departed 
from the rule of uniformity established by the Constitution. 

It is important to notice that in these Insular Cases, the Supreme 
Court was divided into two equal groups of judges, with Mr. Justice 
Brown holding the balance of power between them. 90 In the case 
under consideration the court divided in opinion generally upon the 
status of Porto Rico and specially upon the applicability of the rev- 
enue clauses of the Constitution. In the first instance, Mr. Justice 
Brown reasserts his former position as to the status of the Island, in 
accord with the opinion of the group made up by his former assenting 
colleagues [Chief Justice Fuller and Justices Harlan, Brewer and 
Peckham] ; seeking, however, to find a plausible and rational solution 
of the problem which is uppermost in his mind, he ventures to set up 
a new doctrine which finds no support among his brethren, but com- 
pels him to join in the conclusion of the other group, composed of Jus- 
tices White, Shiras, McKenna and Gray. 

The results sought to be avoided by Mr. Justice Brown and Mr. 
Justice White and his followers in this case were difficulties inherent 
in the problem connected with a legitimate application of the pro- 
visions of the Constitution in the management of the Philippine 
Islands. Mr. Chief Justice Fuller, Mr. Justice Harlan, Mr. Justice 
so See this Joubxal, Vol. X, pp. 318, 321 



488 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

Brewer and Mr. Justice Peckham were not so much, concerned with 
these difficulties as they were with the application of what they be- 
lieved to be the clear and indisputable law of the case, according to 
the whole constitutional history and precedents laid down by the 
Supreme Court in the past. 

This gave rise for a time to the question whether the case under 
consideration settled at all the status of Porto Rico under the Foraker 
Act, and whether the doctrine of non-incorporation developed by Mr. 
Justice White was in reality a doctrine sustained by a majority of 
the court. In our estimation the majority only sustains the judgment 
and decision of the court in so far as it holds that the revenue clause in 
question does not apply to the Island. Beyond this conclusion there 
is no majority at all. As to the status of the Island, it seems evident 
that if there is a majority, it is the other way. The doctrine in ques- 
tion is sustained only by Mr. Justice White and two of the other 
three justices who concurred in his views ; Mr. Justice Brown nowhere 
in this case signifies his assent to the doctrine, but still seems to agree, 
as in the Be Lima case, with his now dissenting brethren, that Porto 
Rico is a part of the United States, although not in the sense of being 
included within the custom union of the States. His doctrine that the 
clauses of the Constitution like the one in question which are oper- 
ative only "throughout the United States," extend to the territories 
only when and in so far as Congress shall direct, does not seem, on 
the other hand, to find any support among his brethren, who quite 
unanimously reject the idea that the Constitution does not extend of 
its own force to the territories. Mr. Justice White, in stating his eight 
propositions on the force and applicability of the Constitution in the 
territories, expressly declared that it is not to be supposed that "the 
Constitution may or may not be applicable at the election of any 
agency of the government," and that "Congress in governing the 
territories is subject to the provisions" thereof. 

Examining the opinions of the judges somewhat more in detail, we 
find that had Mr. Justice Brown agreed to the proposition that the 
uniformity clause in question was equally applicable to the territories 
as to the States, which is practically admitted by all the judges, and 
specially and more frankly by the dissenting members of the court, 



RELATIONS BETWEEN THE UNITED STATES AND PORTO RICO 489 

the decision would have been just the reverse of what it was, for in 
that case he would have joined with the dissenting group of justices 
headed by the Chief Justice and changed their opinion into the actual 
judgment of the court, with the result that the novel doctrine of non- 
incorporation would have been converted merely into a doctrine of 
the dissenting opinion, as in the Be Lima and Dooley cases decided 
the same day, and might never have acquired any importance in the 
judicial history of this country. But Mr. Justice Brown could not 
see his way clear to do so. Influenced by the magnitude of the im- 
mense problems then confronting the American people, he concluded 
his opinion by saying : 

Patriotic and intelligent men may differ widely as to the desirable- 
ness of this or that acquisition, but this is solely a political question. 
We can only consider this aspect of the case so far as to say that no 
construction of the Constitution should be adopted which would pre- 
vent Congress from considering each case upon its merits, unless the 
language, of the instrument imperatively demands it. A false step 
at this time might be fatal to the development of what Chief Justice 
Marshall called the American Empire. Choice in some cases, the 
natural gravitation of small bodies towards large ones in others, the 
result of a successful war in still others, may bring about conditions 
which would render the annexation of distant possessions desirable. 
If those possessions are inhabited by alien races, differing from us in 
religion, customs, laws, methods of taxation and modes of thought, 
the administration of government and justice, according to Anglo- 
Saxon principles, may for a time be impossible ; and the question at 
once arises whether large concessions ought not to be made for a time, 
that, ultimately, our own theories may be carried out, and the bless- 
ings of a free government under the Constitution extended to them. 
We decline to hold that there is anything in the Constitution to forbid 
such action. 

We are therefore of opinion that the Island of Porto Rico is a 
territory appurtenant and belonging to the United States, but not a 
part of the United States within the revenue clauses of the Constitu- 
tion ; that the Foraker Act is constitutional, so far as it imposes duties 
upon imports from such Island, and that this plaintiff cannot recover 
back the duties exacted in this case. 

Writers and commentators have seen in these conclusions of Mr. 
Justice Brown an unavoidable inconsistency with, if not an open con- 
tradiction of, his previous opinion in the Be Lima case, in which he 
expressly declared, that "by the ratification of the Treaty of Paris 



490 THE AMERICAN JOURNAL OP INTERNATIONAL LAW 

the Island became territory of the United States." Does not, how- 
ever, the expression territory appurtenant and belonging to the United 
States mean and imply in his line of reasoning exactly the same thing 
as territory of the United States? Much of this charge of inconsis- 
tency and contradiction brought against Mr. Justice Brown in the 
consideration of the Insular Cases is probably due to the fact that his 
opinion in the case under consideration has been largely misunder- 
stood. His opinion merely holds that Porto Rico was not a part of 
the United States within the meaning of the revenue clauses of the 
Constitution. These clauses, in his estimation, had application only 
among the several States, and his definition of the status of Porto 
Rico as a territory appurtenant and belonging to the United States is 
clearly aimed to negative the idea that the Island was a part of the 
United States in the peculiar sense that he gave to those words. When 
viewed in this light, it becomes quite apparent that there is no such 
inconsistency or contradiction in his conception of the real status of 
the Island. As defined by him in the case under consideration, such 
status is logically and juridically the same thing as he defines it in 
the Be Lima case, namely, that of a territory of the United States, be- 
cause in his opinion the United States was a union of States, the terri- 
tories being merely property of the United States. 

Turning now to Mr. Justice White's opinion, we see, as we have 
already noticed, that he joins also in the conclusion and judgment of 
the court to the extent that the Foraker Act was constitutional in so 
far as it imposed duties upon imports from Porto Rico and that the 
plaintiff could not recover back the duties exacted in the case. This 
conclusion, of course, is predicated primarily upon the general propo- 
sition that the revenue clauses of the Constitution have no application 
to the Island. As to the proposition whether Porto Rico was or not 
a part of the United States, he evidently concurred in the conclusion 
of Mr. Justice Brown that the Island ' ' is a territory appurtenant and 
belonging to the United States, hut not a part of the United States 
within the meaning of the revenue clauses of the Constitution," but 
a careful study of the two opinions will disclose the fact that there is 
no harmony between them in respect to the sense in which these im- 
portant declarations are to be interpreted. While Mr. Justice Brown, 



RELATIONS BETWEEN THE UNITED STATES AND PORTO RICO 491 

on the one hand, is properly to be taken as meaning purely and simply 
that Porto Rico was not a part of the United States because the Island 
was not a State of the Union but only a territory— like any other terri- 
tory of the United States, so far as the status of the territories in 
general is concerned— Mr. Justice White, upon the other hand, evi- 
dently holds that Porto Rico is not a part of the United States' in a 
different and more complicated sense. The distinction involves the 
famous " doctrine of non-incorporation," which has been so much 
attacked and criticized by eminent lawyers and writers as inconsistent 
with general principles, the Constitution of the United States and 
former precedents laid down by the Supreme Court. This doctrine is 
indeed the keynote in Mr. Justice White's opinion, not only in the 
case now under consideration, but also in all the other Insular Cases, 
in which he has always taken such an important part. 

The grounds upon which the said doctrine is founded have been 
frequently attacked as rather obscure and conflicting with certain 
recognized principles of international and constitutional law, and 
former precedents of the Supreme Court. Its soundness, however, is 
not to be found so much in acknowledged principles of law and prece- 
dents of the court as in the fact that it is a new constitutional theory 
perfectly warranted by the Constitution itself and international law, 
and which is, moreover, quite necessary for the successful administra- 
tion of newly acquired territories by the United States. 

To begin with, Mr. Justice White states eight propositions of law 
relating to the applicability and force of the Constitution in the terri- 
tories. From these propositions, which are amply sustained by the 
whole constitutional history of the country and corroborated' by 
numerous precedents laid down by the Supreme Court, he concludes 
that in legislating for Porto Rico, Congress was only empowered to act 
within the Constitution and subject to its applicable limitations, and 
that every provision of the Constitution which applies to a country 
situated as was that Island, was potential in Porto Rico. He then says 
that the "determination of what particular provision of the Consti- 
tution is applicable, generally speaking, in all cases, involves an 
inquiry into the situation of the territory and its relations to the 
United States." 



492 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

The learned Justice then referred to some previous decisions of 
the court as illustrating the principles by him enunciated and said 
that although, as a general rule, the status of a particular territory- 
has to be taken into consideration when the applicability of any pro- 
vision of the Constitution is questioned, it does not follow when the 
Constitution has absolutely withheld from the government all power 
on a given subject, that such an inquiry is necessary. He then estab- 
lishes a distinction between the restrictions which regulate a granted 
power and those which withhold all authority on a particular subject. 
The former would seem to depend for their applicability upon the 
status of the particular territory in question, while the others would 
in the nature of things apply in such territories irrespective of their 
particular status. As the constitutional restrictions involved in the 
case under consideration evidently belonged to the first category of 
this division, it must follow, according to his views, that the question 
relative to the constitutionality of the provision of the Foraker Act 
in controversy was to be answered by determining the status of Porto 
Kico at the time of the passage of the Act in question. 

According to the general reasoning in Mr. Justice White's opinion, 
the question before the court was not merely whether, as in the cases 
of discovery, military conquest or the like, -Porto Rico had been consti- 
tutionally placed under the authority, jurisdiction, or control of the 
United States, nor even whether by virtue of the cession from Spain 
and the acceptance and occupation by the United States, it had abso- 
lutely become the subject of territorial proprietorship by the United 
States ; but whether at the time of the passage of the Act in question 
it had been incorporated, that is to say, whether it had been allowed 
to form an integral part of the United States, as composed of States 
and Territories, so that it might be considered as invested with all 
the constitutional attributes attending such a state of incorporation. 

Entering upon an extended discussion of the conflicting claims of 
counsel in respect to the effects of the acquisition upon the status of 
the Island, he cites many instances and examples of both a mere occu- 
pation and a complete acquisition of foreign or vacant territory 
effected through any of the well known methods sanctioned by the law 
of nations, whether by virtue of specific direction of Congress or as 



RELATIONS BETWEEN THE UNITED STATES AND PORTO RICO 493 

the result of a successful war or even on account of a treaty stipu- 
lating for a temporary or permanent occupation or the absolute cession 
of the territory in question, in order to show that while in all such 
cases the said territory may be, internationally, under the authority, 
jurisdiction, control, and even the complete sovereignty of the United 
States, it can nevertheless not be considered as forming an integral 
part of the United States, but must remain, until Congress shall man- 
ifest its determination in the matter, in a middle ground of disincor- 
poration between an internationally American and a constitutionally 
foreign condition. 

Eeferring to the ability of the treaty-making power to provide for 
or against an immediate incorporation of the acquired territory into 
the United States, Mr. Justice White said : 

There has not been a single cession made from the time of the Con- 
federation up to the present day, excluding the recent treaty with 
Spain, which has not contained stipulations to the effect that the 
United States through Congress would either not disincorporate or 
would incorporate the ceded territory into the United States. . . . 

When the various treaties by which foreign territory has been 
acquired are considered in the light of the circumstances which sur- 
rounded them, it becomes to my mind clearly established that the 
treaty-making power was always deemed to be devoid of authority to 
incorporate territory into the United States without the assent, express 
or implied, of Congress; and that no question to the contrary has ever 
been even mooted. 

Then he went on to declare that in order to appreciate this it is 
essential to bear in mind what the words "United States" signified at 
the time cf the adoption of the Constitution. Stating that when by the 
treaty of peace with Great Britain the independence of the United 
States was acknowledged, it is unquestioned that all the territory 
within the boundaries defined in that treaty, whatever may have been 
the disputes as to title, substantially belonged to particular States, 
he said that the entire territory was part of the United States, and 
that all the native white inhabitants were citizens of the United States 
and endowed with the rights and privileges arising from that relation. 
Then he said : 

When the Northwest Territory was ceded by Virginia, it was ex- 
pressly stipulated that the rights of the inhabitants in this regard 



494 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

should be respected. The ordinance of 1787, providing for the govern- 
ment of the Northwest Territory, fulfilled this promise in behalf of 
the Confederation. Without undertaking to reproduce the text of 
the ordinance, it suffices to say that it contained a bill of rights, a 
promise of ultimate statehood, and it provided (italics mine) that 
' ' The said territory and the States which may be formed therein shall 
ever remain a part of this Confederacy of the United States of Amer- 
ica, subject to the Articles of Confederation, and to such alterations 
therein as shall be constitutionally made, and to all the acts and ordi- 
nances of the United States in Congress assembled, conformably 
thereto" . . . Thus is was that, at the adoption of the Constitution, 
the United States, as a geographical unit and as a governmental con- 
ception both in the international and domestic sense, consisted not 
only of States, but also of territories, all the native white inhabitants 
being endowed with citizenship, protected by pledges of a common 
union, and, except as to political advantages, all enjoying equal rights 
and freedom, and safeguarded by substantially similar guaranties, all 
being under the obligation to contribute their proportionate share for 
the liquidation of the debt and future expenses of the general gov- 
ernment. . . . 

It will be readily observed that these declarations of Mr. Justice 
White as to the import of the words United States are quite different 
from the conclusions of Mr. Justice Brown in respect to the same 
subject. 

Following his own line of reasoning, Mr. Justice White proceeds 
to show how the provisions of the famous Northwest Territory Ordi- 
nance were successively extended by Congressional action to such 
other territories as were ceded by individual States to the United 
States, in order to effect their incorporation into the United States, 
and reviews the history of the acquisitions by treaty from France, 
Spain, Mexico and Russia, which are the acquisitions more closely 
resembling that of Porto Rico by the United States. 

As to Louisiana, which was acquired from France by the treaty 
of 1803, he reached the conclusion that, in accordance with the pre- 
vailing view to the effect that "although the treaty of cession might 
stipulate for incorporation and citizenship under the Constitution, 
such agreements by the treaty-making power were but promises de- 
pending for their fulfillment on the future action of Congress," the 
newly acquired territory "was governed as a mere dependency, until 
... it was by the action of Congress incorporated as a Territory of 



RELATIONS BETWEEN THE UNITED STATES AND PORTO RICO 495 

the United States and the same rights were conferred in the same 
mode by which other Territories had previously been incorporated, 
that is, by bestowing the privileges of citizenship and the rights and 
immunities which pertained to the Northwest Territory." 

As to Florida, which was acquired from Spain by the treaty of 
1819, drafted, although with slight modification, in accordance with 
the precedent afforded by the treaty ceding Louisiana, he concludes 
that Congress, acting under the precedent afforded by the Louisiana 
case, adopted a plan of government which was wholly inconsistent 
with the theory that the territory had been incorporated, and that 
finally "an act was passed . . . which, while not referring to the 
Northwest Territory ordinance, in effect endowed the inhabitants of 
that territory with the rights granted by such ordinance." 

Respecting California, which was acquired from Mexico by the 
treaty of 1848 through a readjustment of boundaries between the two 
countries instead of by an outright cession as in the previous treaties, 
Mr. Justice White said that "the controversy which was then flagrant 
on the subject of slavery prevented the passage of a bill giving Cali- 
fornia a territorial form of government, and California after consid- 
erable delay was therefore directly admitted into the Union as a 
State." He further said that, after the ratification of the treaty, 
various laws were enacted by Congress, which in effect treated the 
territory as acquired by the United States, and that the executive 
officers of the government, conceiving that these Acts were an implied 
or express ratification of the provisions of the treaty by Congress, 
acted upon the assumption that the provisions of the treaty were 
operative, and hence incorporation had thus become effective. As to 
this case, he said: 

Ascertaining the general rule from the provision of this latter 
treaty and the practical execution Avhich it received, it will be seen 
that the precedents established in the cases of Louisiana and Florida 
were departed from to a certain extent ; that is, the rule was consid- 
ered to be that where the treaty, in express terms, brought the territory 
within the boundaries of the United States and provided for incorpor- 
ation, and the treaty was expressly or impliedly recognized by Con- 
gress, the provisions of the treaty ought to be given immediate effect. 
But this did not conflict with the general principles of the law of 
nations which I have at the outset stated, but enforced it, since the 



496 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

action taken assumed, not that incorporation was brought about by the 
treaty-making power wholly without the consent of Congress, but 
only that as the treaty provided for incorporation in express terms, 
and Congress had acted without repudiating it, its provisions should 
be at once enforced. 

In respect to Alaska, which was acquired from Russia by the 
treaty of 1867, Mr. Justice White stated that it was sufficient to say 
that that treaty also contained provisions for incorporation and was 
acted upon exactly in accord with the practical construction applied 
in the case of the acquisition from Mexico. "However," he said, "the 
treaty ceding Alaska contained an express provision excluding from 
citizenship the uncivilized native tribes, and it has been nowhere con- 
tended that this condition of exclusion was inoperative because of the 
want of power under the Constitution in the treaty-making authority 
to so provide. . . . The treaty concerning Alaska, therefore, adds 
cogency to the conception established by every act of the government 
from the foundation — that the condition of a treaty, when expressly 
or impliedly ratified by Congress, becomes the measure by which the 
rights arising from the treaty are to be adjusted." Then follows a 
consideration of various other acts of the government which to him are 
wholly inexplicable except upon the theory that it was admitted that 
the Government of the United States had the power to acquire and 
hold territory without immediately incorporating it. He cites, for 
instance, the simultaneous acquisition and admission of Texas, which 
was admitted into the Union as a State by joint resolution of Congress 
of March 1, 1845, instead of by treaty. He could not understand to 
what grant of power under the Constitution this action could be re- 
ferred unless it was admitted that Congress is vested with the right 
to determine when incorporation arises. 

Summing up his conclusions as to the ability of the treaty-making 
power, to provide for or against an immediate or prospective incor- 
poration of the acquired territory, he said : 

It is, then, as I think, indubitably settled by the principles of the 
law of nations, by the nature of the government created under the 
Constitution, by the express and implied powers conferred upon that 
government by the Constitution, by the mode in which those powers 
have been executed, from the beginning, and by an unbroken line of 



RELATIONS BETWEEN THE UNITED STATES AND PORTO RI€0 497 

decisions of this court, first announced by Marshall and followed and 
lucidly expounded by Taney, that the treaty-making power cannot 
incorporate territory into the United States without the express or 
implied assent of Congress, that it may insert in a treaty conditions 
against immediate incorporation, and that on the other hand when it 
has expressed in the treaty the conditions favorable to incorporation 
they will, if the treaty be not repudiated by Congress, have the force 
of law of the land, and therefore by the fulfillment of such conditions 
cause incorporation to result. It must follow, therefore, that where a 
treaty contains no conditions for incorporation, and, above all, where 
it not only has no such conditions, but expressly provides to the con- 
trary, incorporation does not arise until in the wisdom of Congress 
it is deemed that the acquired territory has reached that state where 
it is proper that it should enter into and form a part of the American 
family. 

Coming right down to the application of his doctrine to the case 
under consideration, Mr. Justice White said: 

Does, then, the treaty in question contain a provision for incor- 
poration, or does it, on the contrary, stipulate that incorporation shall 
not take place from the mere effect of the treaty and until Congress 
has so determined? 

Here Mr. Justice White quotes Articles II, IX and X of the Treaty 
of Paris, and says : 

It is to me obvious that the above quoted provisions of the treaty 
do not stipulate for incorporation, but on the contrary, expressly 
provide that the ''civil rights and political status of the native inhab- 
itants of the territories hereby ceded," shall be determined by Con- 
gress. 

When the rights to which this careful provision refers are put m 
juxtaposition with those which have been deemed essential from the 
foundation of the government to bring about incorporation, all of 
which have been previously referred to, I. cannot doubt that the ex- 
press purpose of the treaty was not only to leave the status of the 
territory to be determined by Congress but to prevent the treaty from 
operating to the contrary. 

Keferring to the contention that the Foraker Act was to be taken 
as a ratification of the treaty and that incorporation had therefore 
taken place, he said: 

Of course, it is evident that the express or implied acquiescence by 
Congress in a treaty so framed cannot import that a result was 



498 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

brought about which the treaty itself — giving effect to its provisions — 
could not produce. And, in addition, the provisions of the act by 
which the duty here in question was imposed, taken as a whole, seem 
to me plainly to manifest the intention of Congress that for the pres- 
ent at least Porto Eico is not to be incorporated into the United States. 

In conclusion, Mr. Justice White arrives at an unequivocal state- 
ment of his conception of the status of Porto Rico, and reached a final 
disposition of the case, by saying: 

The result of what has been said is that whilst in an international 
sense Porto Rico was not a foreign country, since it was subject to the 
sovereignty of and was owned by the United States, it was foreign to 
the United States in a domestic sense, because the Island had not been 
incorporated into the United States, but was merely appurtenant 
thereto as a possession. As a necessary consequence, the impost in 
question assessed on merchandise coming from Porto Rico into the 
United States after the cession was within the power of Congress, 
and that body was not, moreover, as to such imposts, controlled by the 
clause requiring that imposts should be uniform throughout the 
United States; in other words, the provision of the Constitution just 
referred to was not applicable to Congress in legislating for Porto 
Rico. 

As will be readily seen, these declarations of Mr. Justice White 
clearly establish the fact that, while he reached the same conclusion 
as to a decision in the case, his conception of the status of Porto Rico 
was clearly different from that entertained by Mr. Justice Brown. It 
would seem, therefore, that, as already suggested, the case under con- 
sideration is no authority for a determination of the status of Porto 
Rico, because as to this particular point there is no majority of the 
court. Taking into consideration, however, subsequent decisions of the 
Supreme Court 91 clearly approving the doctrine of non-incorporation 
sustained by him, it must be admitted that the opinion of Mr. Justice 
White in this case contains the prevailing doctrine and must be con- 
sidered as the main authority for the status of Porto Rico as it is 

9i Hawaii v. Mankichi, 190 U. S. 197; Dorr v. U. S., 195 U. S. 138; Rass- 
mussen v. U. S., 197 U. S. 516; Kopel v. Bingham, 211 U. S., 468; Dowdell v. 
U. S., 221 U. S. 91; The People of Porto Rico v. Rosaly, 227 U. S. 270; 
Ocampo v. U. S., 234 U. S. 91; and the recent cases decided per curiam: The 
People of Porto Rico et al. v. Carlos Tapia, 245 U. S. 639, and The People of Porto 
Rico et al. v. Jose Muratti, 245 U. S. 639. 



RELATIONS BETWEEN THE UNITED STATES AND PORTO RICO 499 

understood to be at the present time, namely, a mere dependency, a 
possession, or, technically, an unincorporated territory of the United 
States. 

Examining the other opinions in the case under consideration, we 
find that Mr. Justice Gray 's concurring opinion, while rather difficult 
to analyze, does not follow the same lines of reasoning of Mr. Justice 
"White's opinion. 

As to the dissenting opinions, it may be sufficient to say that they, 
in the main, sustain the position of the court in the cases of Dooley v. 
United States 92 and De Lima v. Bidwell 93 already considered, 94 reject- 
ing both Mr. Justice White's doctrine of non-incorporation and that 
of Mr. Justice Brown relative to the application of the Constitution 
to the territories. They also maintain the proposition that Porto Eico 
was a territory of the United States and that the revenue clauses in 
question were in force in the Island as being applicable throughout 
the United States. Mr. Justice Harlan's opinion is particularly 
worthy of notice for the vigor of his contentions and his clarity in the 
enunciation of doctrines which, but for the Philippine adventure, 
might have been applied by a unanimous court in the consideration 
of the Insular Cases. 

Part III. 

1. THE DOCTRINE OF NON-INCORPORATION : ITS APPLICATION ; ITS EFFECTS ; 
ITS VALUE AS A CONSTITUTIONAL ASSET. 

From a careful consideration and study of Mr. Justice "White's 
opinions in the so-called Insular Cases, and especially of his extended 
opinion in the case of Dowries v. Bidwell 95 and subsequent opinions 
by him and other members of the Supreme Court, 96 the following 
propositions may be collected. 

The doctrine of non-incorporation is grounded in the first place 
upon the undoubted principle that every nation has the right of deter- 
mining for itself the status of such territories as it may acquire. This 

92 182 U. S. 222. 95 Supra, p. 490. 

»3 182 U. S. 1. 96 Supra, note 90. 

»4 This Joubnal, Vol. X, pp. 318 and 321. 



500 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

right legally inheres in the general principle of sovereignty, and is 
just as perfect in the United States as in any other so-called sovereign 
nation of the world. It is obvious that in this country, where the sov- 
ereignty of the nation resides in the people, the determination of the 
status of newly acquired territory belongs, in the first instance, to 
the people of the United States. But these people, as at present con- 
stituted and organized as a nation, do not act directly in the matter 
of exercising their sovereignty in any particular case, but have, in a 
general way, expressed their will in a written Constitution, the pro- 
visions of which, in each particular case, constitute a guiding light 
for those entrusted with the powers and duties of government. The 
Constitution does not contain any express provisions in this respect, 
but taking into consideration the nature of the government created 
under that instrument it is a fundamental part of the doctrine of 
non-incorporation that the power to fix the status of newly acquired 
territories in all cases clearly devolves eo instanti upon the Congress 
composed of the Senate and the House of Representatives. It is also 
a part of this doctrine that in cases where there is a treaty providing 
for incorporation, this will take effect only if the treaty is not repudi- 
ated, but accepted and acted upon by Congress. And it is also held 
that when the treaty contains no conditions for incorporation and, 
a fortiori, when the treaty not only has no such conditions but ex- 
pressly provides to the contrary, incorporation does not arise until 
Congress shall determine that the acquired territory should be taken 
into and made a part of the United States. 

It may be added that in the discharge of its responsibilities, Con- 
gress may defer the incorporation of newly acquired territory as 
long as it shall see fit ; or it may, in the pursuance of a different policy, 
embracing considerations of both national and international nature, 
resolve to abandon or reject altogether the purpose to incorporate, 
as in the case of the Philippine Islands, and establish the territory 
as an independent government, bound to the United States by indis- 
soluble ties of mutual protection and friendship. It may further 
constitute the said territory and people into an autonomous common- 
wealth, bound to the United States by such outward evidences of sov- 
ereignty or by such ties of dependency as may be deemed essential 



RELATIONS BETWEEN THE UNITED STATES AND PORTO RICO 501 

and indispensable for the protection and security of the United 
States or for the advancement of its commercial and financial interests 
or its political or military prestige. 97 There is no doubt that in the 
determination of each particular case, Congress will feel bound to 
discharge the great duties imposed upon it not only with that sense 
of responsibility which it owes to the people of the United States, but 
also with a due regard for the interests and wishes of the peoples 
concerned in such determination. 

In the meantime, and until public opinion has crystallized into 
some form of solution, the territory in question is held to be, accord- 
ing to this doctrine of non-incorporation, in the condition of a colonial 
possession, waiting, so to speak, upon the decision of Congress. 

In contrast with the status of such territories as have been already 
incorporated into the United States, the condition of the newly ac- 
quired territory is generally described as denoting a status of non- 
incorporation preceding that of incorporation. For this reason, the 
efforts of a good many able minds have been directed for the last 
twenty years to determine in some practical manner the precise con- 
ditions which may be required to bring about the change from the 
state of non-incorporation into that of incorporation. These efforts, 
however, have in most every case resulted in failure. The reason lies 
in the fact that, as a rule, the attempt has been made to define the 
status of incorporation as comprising such and such characteristic 
features relating to the organization of the local government and 
to such and such others which pertain to the political status and civil 
rights of the native inhabitants of the territory in question, without a 
proper regard to the all-important consideration that incorporation 
is merely a question of intention, the intention of Congress to in- 
corporate. Thus when the fact of incorporation comes up as depend- 
ing on the interpretation of an Act of Congress relating to newly 
acquired territory, the question is not what are the particular 
features of this Act in respect to the organization of local government 
or to the civil rights and political status of its inhabitants, but rather, 

97 See a very illuminating article relating to this question, although upon 
a different subject, by George A. Malcolm in Am. Law. Rev., Vol. LI, No. 4, 
p. 543. 



502 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

does such an Act clearly manifest the intention of Congress to in- 
corporate? Or does it, on the contrary, show a deliberate purpose 
on the part of Congress not to incorporate? In all cases, Congress 
does manifest a purpose either to incorporate or not to incorporate ; 
and when, from the provisions of the Act, it clearly appears that the 
intention of Congress has been not to incorporate, but to leave the 
territory in question in its condition of non-incorporation, it would 
be idle to contend that the effect of the Act was to bring about incor- 
poration just because there are in the act such and such provisions 
which affect its organization 98 or the civil rights or political status of 
the inhabitants. 

This was peculiarly shown in two recent Porto Rican cases, where 
it was contended that the granting of American citizenship to the 
inhabitants of Porto Rico had the effect of incorporating the Island 
into the United States. The Supreme Court, however, reached a 
unanimous decision against any such contention upon the authority 
of Dowries v. Bidwell and other subsequent cases cited by the Court." 

From what has been said above it may be inferred that the true 
rule in respect to incorporation is to ascertain from the general pro- 
visions of the Act the real determination of Congress in the matter, 
without giving particular importance to specific terms, and so long 
as Congress does not clearly manifest its purpose to incorporate, but, 

98 Organization refers to the government; incorporation to the status of the 
territory in question. A territory is said to be organized when Congress has 
legislated for it, establishing a formal civil government therein. See Re Lane, 
135 U. S. 443. It is said to be incorporated when it has been allowed to become 
an integral part of the United States. See Mr. Justice White's opinion, supra, p. 
490. Thus a territory may be organized and yet not incorporated, or, conversely, 
it may be incorporated and yet not organized. That Porto Rico is a completely 
organized territory was justly asserted in Kopel v. Bingham, 211 U. S. 469; 
but see opinion of Mr. Justice Brown in Rassmussen v. U. S., 197 U. S., 531. 
See also The People of Porto Rico v. Manuel Rosaly y Castillo, 227 U. S. 270, 
where it was decided that the government created by the Organic Act has all 
the attributes of sovereignty as understood under the American system of 
government. 

99 The People of Porto Rico et al. v. Carlos Tapia, 245 U. S. 639, which was 
an appeal from the District Court of the United States' for the District of Porto 
Rico; and The People of Porto Rico et al. v. Jose Muratti, 245 U. S. 639, which 
came up in error to and on a writ of certiorari to the Supreme Court of Porto 
Rico. 



RELATIONS BETWEEN THE UNITED STATES AND PORTO RICO 503 

on the contrary, shows a decided inclination not to do so, incorpora- 
tion does not take place. Obviously, the intention of Congress may be 
manifested either expressly or impliedly, in one -way or in another, 
but in all cases the purpose may be ascertained without any great 
difficulty by examining carefully all the provisions of the Act, and 
then the question of incorporation is readily answered. 

The doctrine of non-incorporation is calculated, as has been seen, 
to exclude the. newly acquired territory from the United States and 
make it a foreign territory in the constitutional sense, for the purpose 
of administration, according to the necessities of the case. So far as 
the application of the provisions of the Constitution is concerned, 
the principal effect of the doctrine is to withhold from the territory 
in question the application of all such provisions as might be applied 
to it, because of their being clearly applicable everywhere throughout 
the United States. This doctrine, however, the same as that of Mr. 
Justice Brown, does not affect the application of the restrictions of 
the Constitution which withdraw from the Central Government all 
authority to act on a particular subject. Thus, for instance, the pro- 
hibition of the enactment of ex post facto laws and bills of attainder 
and of conferring titles of nobility, are generally controlling in re- 
spect to the newly acquired territory. This is not so, because they 
are in any way operative in the territory in question, but merely 
because they deprive Congress of all power to legislate upon such 
matters. In this sense the condition of Porto Rico differs diametri- 
cally from that of the Territories, technically so called, for these are 
considered and held to be incorporated into and constituting an inte- 
gral of the United States, with the result that no provision of the 
Constitution is withheld from them, except only such as specifically 
refer to the States or which from their very nature can have no appli- 
cation to the -Territories as such. 

As to the native inhabitants, it is quite apparent that the effect 
of this doctrine of constitutional exclusion is to withhold from them 
American citizenship, and place them in a class by themselves, which 
gives them a condition of peculiar interest and importance, affecting 
their political status and civil rights. This deserves a separate study; 
which we shall attempt to make in the succeeding section. 



504 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

In conclusion it may be said that, although the doctrine of non- 
incorporation may be, as is claimed by very able and practical lawyers, 
a pronounced departure from general principles, and precedents of 
the Supreme Court and constitutional theories scarcely denied by 
Chief Justice "White, it must be admitted that the doctrine is one of 
the most farsighted pieces of judicial interpretation of the Constitu- 
tion handed down by the court since the time when Chief Justice 
Marshall maintained the jurisdiction of the Supreme Court to declare 
unconstitutional and invalid a solemn Act of Congress, which was in 
conflict with the provisions of the Constitution of the United States — 
a jurisdiction, which, however much disputed, criticized or abused 
either as a political or as a judicial proposition, has always deserved, 
does deserve and will probably continue for a long time to deserve, 
the admiration and gratitude of learned, conservative and patriotic 
Americans. And, so far as the practical results of this doctrine 
evolved by the present Chief Justice of the Supreme Court are con- 
cerned, there can be no controversy as to the fact that it did accom- 
plish a necessary thing, namely, the exclusion of alien territories and 
peoples acquired by treaty or by conquest — an exclusion which, al- 
though particularly intended at the time in respect to the Philippines, 
is extended as the suma providentia of this doctrine to all. It has 
been said that in this it realized the most cherished hopes of the policy 
of imperialism, and that, to say the least, it was a doctrine without 
which that policy could not indeed have been carried very far. But 
that is no argument against the immense value of the doctrine as a 
great constitutional asset. 

2. THE POLITICAL STATUS OF PORTO RICANS : AMERICAN AND PORTO 

RICAN CITIZENSHIP 

The general question relating to the political status and civil rights 
of the native inhabitants of newly acquired territory has been the 
subject of extended discussions and no little diversity of opinion, 
among those qualified to speak authoritatively. This question, how- 
ever, has never been before the Supreme Court, at least after the 
decisions in the so-called Insular Cases, and the only case in which 
it seems to have been presented at all was that of Gonzalez v. Will- 



RELATIONS BETWEEN THE UNITED STATES AND PORTO RICO 505 

iams 100 which is another of them ; but this case had reference only to 
the aspect of alienage and was considered from a purely statutory 
point of view. From the point of view of international law, the ques- 
tion would not seem to present any great difficulty or embarrassment, 
and, when properly construed, the case of Gonzalez v. Williams is 
undoubtedly an authority for the proposition that the inhabitants 
of newly acquired territories are not aliens in an international sense. 
It was indeed held in that case that a native inhabitant of Porto Eico, 
Isabella Gonzalez, was not an alien within the intent and meaning 
of the immigration laws ; but it must be remembered that these laws 
particularly refer to foreigners in the strict international sense. The 
court specifically refers to this condition by declaring that "we can- 
not concede that the word alien, as used in the Act of 189 1, 101 embraces 
the citizens of Porto Rico." 

We think it clear that the Act relates to foreigners as respects this 
country, to persons owing allegiance to a foreign government, and 
citizens or subjects thereof; and that citizens of Porto Rico, whose 
permanent allegiance is due to the United States; who live in the 
peace of the dominion of the United States ; the organic law of whose 
domicile was enacted by the United States, and is enforced through 
officials sworn to support the Constitution of the United States, are 
not "aliens" and upon their arrival by water at the ports of our 
mainland are not "alien immigrants", within the intent and meaning 
of the Act of 1891. 

It would seem, on the other hand, that if they are not aliens, they 
must be Americans, that is to say, nationals, for national is the anti- 
thesis of alien, in the international sense. 102 This proposition also 

100 152 U. S. 1. 10126 Stat. 1084, c. 551. 

102 "Manifestly the nationality of the inhabitants of territory acquired by 
conquest or cession becomes that of the government under whose dominion they 
pass, subject to the right of election on their part to retain their former nation- 
ality by removal or otherwise as may be provided." Boyd v. Thayer, 143 U. S. 
162. By Article IX of the Treaty of Paris, the right to retain Spanish national- 
ity was specifically reserved to the natives of Spain residing in the Island, when 
complying with certain conditions stipulated therein. As to the Porto Ricans, 
no such right was reserved to them, but their civil rights and political status 
was to be determined by Congress. See also, in this connection, Coudert, Cer- 
tainty and Justice, pp. 136 et seq., and Dudley P. McGovney in Columbia Law 
Rev., Vol. XI, p. 231. 



506 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

finds support in the language employed by the court in the same case 
of Gonzalez v. Williams, which was, by the way, decided by a unani- 
mous opinion of the court. In this case, Mr. Chief Justice Fuller, 
speaking for the court, quoted, evidently with approval, from an 
opinion of the Attorney General in respect to a provision of the Tariff 
Act of 1897 103 exempting "works of art, the production of American 
artists residing temporarily abroad", in which he said that a native 
inhabitant of Porto Kico temporarily residing in Paris was entitled 
to the benefit of that provision simply because he had become an 
American upon the acquisition and by virtue of the passage of the 
Foraker Act, which evidently was considered as an acceptance by 
Congress of the cession. 

How far, however, will these considerations affect the political 
status and civil rights of the native inhabitants of newly acquired 
territories under the Constitution and laws of the United States is a 
question which has not received much attention from writers and 
commentators upon the subject. Judging, however, from the course 
adopted by the Executive Department of the Government in several 
cases presented, in which either the political status or the civil rights 
of these persons were involved under different laws of Congress, it 
is quite safe to infer that they are not considered as entirely devoid 
of rights which usually do not appertain to foreigners, but to Amer- 
icans, not as citizens, but as nationals of this great Republic. 

Considering the doctrine of non-incorporation and its scope with 
respect to the status of newly acquired territories and peoples, it 
would clearly seem that while these people may not be considered as 
aliens in an international sense, yet from a constitutional point of 
view, they are not citizens. In the case of Porto Rico it must be ad- 
mitted that, as said by a distinguished lawyer and careful writer, 
the treaty of Paris did "whatever it could by its language to prevent 
the inference that there was any collective naturalization of the 
people" of the Island. "While a treaty may indeed collectively 
naturalize a whole people, nevertheless it is fair to assume that the 
treaty must intend such naturalization to take place. In this case, 

103 30 Stat. 151, 203, c. 11. 



RELATIONS BETWEEN THE UNITED STATES AND PORTO RICO 507 

the political status and civil rights having been reserved for the future 
action of Congress, it is fair to argue that no naturalization" took 
place. 104 

There is no question, however, that as the inhabitants of newly 
acquired territory are not aliens in the technical sense of that word, 
the legal disabilities of alienage and the laws which apply to aliens 
do not affect them. It is apparent, nevertheless, that nationality 
would not of itself alone confer upon them the rights which appertain 
to citizenship. It has been contended with quite a profusion of data 
and arguments, that nationality and citizenship are convertible terms 
under the Constitution of the United States. 105 But, in view of the 
decisions in the Insular Cases and subsequent decisions of the 
Supreme Court, it would seem that, if this question should ever be 
presented to the consideration of this high tribunal in a proper case, 
the decision would not favor any such contentions, or even the further 
one of the same writer that the "citizenship" of these truly alien 
peoples would be a "qualified" American citizenship. To be con- 
sistent with the doctrine of non-incorporation, the Supreme Court 
could not, in our estimation, do otherwise than declare that these 
people are "foreign" to the United States in a domestic sense, in 
the sense that they have not been incorporated into the body of Amer- 
ican citizenry. 106 And this probably would be so also both in the case 
of such inhabitants as were born at the time of the acquisition and 
such as are born afterwards, for the doctrine of non-incorporation 
leaves no room for the distinction of ante nati and post nati as an 
element in the construction of the opening clause of the Fourteenth 
Amendment to the Constitution. Thus, besides consistency, there 
would be clarity, uniformity and certainty. 

As to their civil rights, it may be easily inferred that on account 
of the double aspect of their status, they would depend in each case 
upon the particular aspect involved ; that is to say, whether the right 

104 Frederic R. Coudert, op. cit., p. 148-149. 

105 "American Citizenship," by Dudley 0. McGovney, of Tulane University, 
in Columbia Law Rev., Vol. XI, p. 231. 

ioe See dissenting opinion of Mr. Justice White in Dooley v. United States, 
182 U. S. 222. 



508 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

involved their status as nationals in the international sense, or 
whether it involved, on the contrary, their status as "outsiders, for- 
eigners, or aliens," in the constitutional sense. 

Taking into consideration this double aspect of the status of the 
native inhabitants of newly acquired territories, and referring to the 
difficulty of finding a proper designation of this status under existing 
vocabularies, another writer of note has felt justified in saying that 
"perhaps it would be both appropriate and timely to derive the term 
'appurtezens' from the word appurtenant used by the court in 
defining the position of the Insular territory, just as the term citizen 
has been derived from the word city." 107 

While this question concerning the status of the native inhabitants 
of newly acquired territories may seem always interesting and in- 
volving a good deal of national importance in the United States, with 
respect to the native inhabitants of Porto Eico it is merely an aca- 
demic question having only a historical value, on account of the recent 
passage by Congress of the so-called Jones- Shaf roth Act by which the 
privilege of American citizenship is extended to them. 108 It should 
be said, however, that the practical result of the extraordinary status 
of the native inhabitants of Porto Eico previous to the passage of 
that law worked in a good many instances very grievous injustice. 
For instance, a Porto Eican who had graduated from an American 
University, say of New York or Vermont, could not practice before 
the courts of those States, merely because he was not a citizen of the 
United States. 109 And where the right to vote was made to depend 
directly on the status of citizenship, he could not exercise the fran- 
chise even though he was burdened with practically all the duties of 
a citizen. Porto Eicans could not then enter the Diplomatic or Con- 
sular service of the United States, nor could they sue in a Federal 
'Court, nor claim any immunity or privilege under the Constitution, 
except those which are insured to every person by that instrument. 
If residing abroad, he was, however, entitled to the protection of the 

10 ? A. J. Lien, Privileges and Immunities of Citizens of the United States, 
pp. 26-27. 

los Supra, note 81. 

109 The same could be said as to the practice of other professions, such as that 
of medicine, pharmacy, etc. 



RELATIONS BETWEEN THE UNITED STATES AND PORTO RICO 509 

United States. 110 It may be well to remember that under the Amer- 
ican system of government the idea of citizenship involves the con- 
cept of a double citizenship : citizenship of the United States and 
citizenship of the individual State. Carrying this concept one step 
further, the inhabitants of the territories are in the same way deemed 
to be citizens thereof, whether the said territory is incorporated or 
not. Thus, the people of Porto Kico may be properly deemed to be 
citizens of Porto Rico. However, the Foraker Act provided that all 
inhabitants continuing to reside therein who were Spanish subjects 
on April 11, 1899, and then resided in the Island, and their children 
born subsequent thereto, were to be deemed and held to be citizens 
of Porto Eico, except such as had elected to preserve their Spanish 
allegiance on that date, in accordance with the provisions of the 
said treaty. 

A distinguished Porto Rican lawyer and writer, the late Jose de 
Diego, who was, until his recent demise, the undisputed leader of the 
independentist movement in Porto Rico, seriously contended 111 that 
this particular provision of the old Organic Act of Porto Rico ex- 
pressly recognized a Porto Rican citizenship, wholly incompatible 
with American citizenship and clearly declaratory of a Porto Rican 
sovereignty which it was, inferentially, the intention of Congress 
to recognize, in thus fixing the political status of that part of the 
inhabitants of the Island. However noble, patriotic and commendable, 
from a Porto Rican point of view, this contention may be, it could 
not indeed stand the test of even a casual examination from a purely 
American point of view. That such a contention is wrong was amply 
shown by the passage of the Jones-Shaf roth Act, by which, while 
expressly preserving to the Islanders who should so prefer the self- 
same Porto Rican citizenship which had been deemed to exist under 
the Foraker Act, Congress extended to Porto Ricans the privilege of 
American citizenship, which is incompatible with citizenship under a 
different sovereignty than that of the United States, unless it is State 
citizenship. Territorial citizenship implies indeed a sovereignty of the 
territory; but this sovereignty could not be in conflict with the 

no Section 7 of the so-called Foraker Act, supra, specifically provided that 
Porto Ricans were entitled to the protection of the United States. 

in Nuevas Campanas, 207-213. 



510 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

sovereignty of the United States and must be limited to the powers 
granted to it by the Organic Act which brings it into existence. 
Porto Rican citizenship then, let it be said clearly, is here meant in 
an especial, purely statutory sense, in the sense of the Act, the evi- 
dent purpose of which was merely to designate that part of the 
people of Porto Rico who could not properly be designated as 
American citizens within the body politic created by the said 
Act, and nothing more. 112 As to an alleged Porto Rican sover- 
eignty recognized, as Mr. de Diego said, by the Treaty of Paris, we 
have already seen that the treaty does not do any such thing. 113 As 
to the policy of a recognition by Congress of the sovereignty of the 
people of Porto Rico as an independent government and, therefore, 
of a Porto Rican citizenship in an international sense, it may be 
observed that this is a question which involves a good many consider- 
ations of a national and international character, the study of which 
should be undertaken as soon as possible by those whose duty it is to 
do so. The same may be said as to the advisability of finally incor- 
porating the Island as a full-fledged State of the Union, or estab- 
lishing it as a fully self-governing people under the continued 
sovereignty of the United States. 

Respecting the present status of Porto Ricans, there can be no 
doubt that they are both citizens of Porto Rico and citizens of the 
United States. It must be observed, however, that Porto Rican 
citizenship is a purely local status depending, as all local citizenship 
in the United States, upon residence in the place. Thus when a Porto 
Rican acquires a residence in another place 113a he ceases for all legal 

112 See, however, The People of Porto Rico v. Rosaly, supra. 

us Supra, p. 485-486. 

ii3 a Reily v. Lamar, 2 Cranch 357; The Dos Hermanos, 2 Wheat. 98. 

There must be an actual, not pretended, change of domicil; in other words, 
the removal must be "a real one, animo manendi, and not merely ostensible." 
Case v. Clarke, 5 Mason, 70. The intention and the act must concur in order 
to effect such a change of domicil as constitutes a change of citizenship. In 
Ennis v. Smith, 14 How. 400, 423, it was said that "a removal which does not 
contemplate an absence from the former domicil for an indefinite and uncertain 
time is not a change of it," and that while it was difficult to lay down any rule 
under which every instance of residence could be brought which may make a 
domicil of choice, "there must be, to constitute it, actual residence in the place, 
with the intention that it is to be a principal and permanent residence." Morris 
v. Gilner, 129 U. S. 328. 



RELATIONS BETWEEN THE UNITED STATES AND PORTO RICO 511 

purposes to be a citizen of Porto Rico. In the same way, when he 
returns to reside in the Island he becomes again a citizen of Porto 
Rico. The same may be said of any American citizen who chooses 
to reside in or to depart from the Island. He will be a citizen of 
Porto Rico as long as he continues to reside in the Island. If he 
leaves with an intention to reside somewhere else, he ceases auto- 
matically to be a citizen of Porto Rico. It must be also observed, 
on the other hand, that American citizenship is of a universal char- 
acter and accompanies the person wherever he goes. Thus a Porto 
Rican is just as much an American citizen while residing in Porto 
Rico as when he resides in any of the States or abroad. And his 
status in this respect is the same as that of any native-born citizen 
of the United States. 

3. THE CIVIL AND POLITICAL RIGHTS OF PORTO RICANS UNDER THE 
AMERICAN SYSTEM OP GOVERNMENT 

Considering, for our present purpose, the concept of citizenship 
as generally understood under American institutions and laws, it 
may be said that corresponding to this double aspect of citizenship, 
there is a separate and distinct range of privileges and immunities, 
guaranteed in each case by the government under which they arise. 
Thus Porto Rican citizenship involves a set of rights and obligations 
peculiarly local in their nature and depending for their existence and 
enforcement on the provisions of the Organic Act of the Island and 
the statutory laws enacted by the Porto Rican legislature thereunder. 
American citizenship, on the other hand, involves another set of rights 
and obligations, not necessarily different from the other, but of a 
universal and more comprehensive nature. These rights and obliga- 
tions, which are implied in American citizenship depend for their 
existence and enforcement on the provisions of the Constitution and 
laws of the United States and the character of American institutions. 
It is then to these sources that the citizen must go in order to ascer- 
tain his rights and obligations under these two governments. 

Respecting the civil and political rights of Porto Ricans under 
the American system of government, it may be said that, aside from 
any question relative to the existence or enforcement of a given right, 



512 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

its enjoyment and exercise by the citizen may in many cases depend 
upon his local personal status or the international or constitutional 
status of the place wherein he resides. Thus, for instance, the right of 
suffrage may be made to depend by the local laws on various personal 
qualifications, such as sex, age, education, etc., and in this manner 
women, minors, illiterate persons, and lunatics, for example, although 
citizens, may be legally incompetent to exercise this right. Some 
able and learned writers have found in these persons who are thus 
deprived of the exercise of rights pertaining to citizenship, an argu- 
ment to contend that there are, under the Constitution, qualified citi- 
zens or subjects. We submit that they are disqualified persons and 
that their disqualification has nothing to do with their citizenship. 
They are disqualified in their personal status as voters, eligibles for 
office, etc. The state, as a question of public policy, deprives the 
person, not the citizen, of the exercise of a given right, not because 
of any defect or qualification in his citizenship, but rather through a 
legal insufficiency in his personal qualification, which obliterates in 
him the legal capacity required for the intelligent exercise of that 
right which ordinarily belongs to him as a citizen. 

Then again, the citizen may be unable to exercise a given right, 
as already said, on account of the international or constitutional 
status of the place wherein he resides, and thus, for instance, the in- 
habitants of Porto Eico are unable to take a direct part in the conduct 
of the national government, which is a peculiar right of the citizen. 
But this does not result from any inferiority or qualifications in their 
citizenship, but merely from a constitutional condition adversely 
affecting the status of Porto Eico. This proposition will be readily 
admitted when it is considered that, under the Constitution, the States 
and their people only, through their Senators and Eepresentatives 
in Congress, have exclusive participation in the making of the national 
laws. So too, under the Constitution, the States and their people only 
have exclusive participation in the election of the President, who as 
the Chief Executive, is entrusted with the execution of the laws, and 
otherwise directs and controls, either by himself, as such Chief Exe- 
cutive, or by and with the advice and consent of the Senate, the 
general administration of the government and the conduct of foreign 



RELATIONS BETWEEN THE UNITED STATES AND PORTO RICO 513 

relations, or, as Commander-in-Chief of the Army and Navy of the 
United States, the military activities thereof in ease of war. The 
same is true as to the Vice-President, who substitutes for the President 
in the cases of emergency provided by the Constitution of the United 
States. It follows, therefore, that the inhabitants of Porto Rico, in- 
dependent of their status as full-fledged citizens of the United States, 
and by virtue of the fact that Porto Eico is not a State, are unable 
to exercise such political rights as might otherwise belong to them 
as American citizens. This inability, of course, disappears for the 
individual Porto Rican as soon as he acquires residence within a 
State, because, as we will see hereinafter, by virtue of the Fourteenth 
Amendment of the Constitution he would become a citizen of such a 
State and therefore be entitled to the enjoyment of all rights, privi- 
leges and immunities as may appertain to him not only as a citizen of 
the United States, but also as a citizen of that particular State. 
Thus, conversely, while as a resident of a State he may be privileged, 
as a member of that body politic, to take part in that State 's politics, 
as well as in the national politics, yet as a citizen of Porto Rico, as 
an American citizen residing in the Island, he can take a part and 
effective interest only in the local politics of Porto Rico, and not in 
the national politics of the United States. 114 

This apparently continued exclusion of the Porto Rican from 
taking part in the active political life of the nation has led some 
misinformed or disappointed persons to contend that the American 
citizenship granted to the Porto Ricans is a base, adulterated, and 
inferior citizenship of the United States, which merely imposes upon 
them burdensome obligations of citizenship, 115 without an adequate 
compensation in the enjoyment and exercise of rights which are con- 

114 In the case of Am. Ins. Co. v. Canter (1 Pet. 511), referring to the ad- 
mission of the inhabitants of Florida to the enjoyment of the privileges, rights 
and immunities of citizens of the United States, Chief Justice Marshall said: 
"They do not, however, participate in political power; they do not share in the 
government, till Florida shall become a State." 

"The right of suffrage is a right which emanates from the State alone, 
irrespective of Federal interference." Minor v. Happersett, 21 Wall. 162. 

us Porto Rico contributed more soldiers during the late war than the Dis- 
trict of Columbia and all the Territories combined. 



514 THE AMERICAN JOURNAL OP INTERNATIONAL LAW 

sidered as the most treasured possessions of the citizen. However 
true this contention may be in its ultimate results upon the Porto 
Ricans who are residing on the Island, it cannot be denied that there 
is, under the Constitution, only one legitimate citizenship of the 
United States, and that is the one kind of citizenship which has beeii 
extended to the Porto Ricans by the Jones-Shafroth Act. 

As already stated, this Condition, while thus adversely affecting 
the rights of Porto Ricans, finds its logical explanation only in the 
character of American institutions, and in the fact that Porto Rico 
is not a State of the Union. And let it be remembered here that this 
peculiar condition does not affect the native inhabitants of Porto 
Rico only, but it applies equally well to all such other American 
citizens who happen to be residing on the Island — and for that matter, 
in any other place outside of the individual States. It is to be re- 
membered also, that the inhabitants of the so-called Territories are 
in no better condition, in this respect, than the Porto Ricans them- 
selves. The District of Columbia is in the same position. It follows, 
therefore, that, contrary to unjustifiable assertions made in this re- 
spect, there is not in this condition any special discrimination or 
prejudice against the people of Porto Rico as such. It is a peculiar 
condition of American institutions, which finds no remedy except in 
Statehood. 

It must be conceded, however, that so far as political rights of a 
national character are concerned, Porto Ricans are not much better 
off to-day than they were before the privilege of American citizenship 
was bestowed upon them; for while it may be true that any Porto 
Rican who removes into a State of the Union may acquire a direct 
participation in the National Government, yet with respect to the 
bulk of Porto Ricans remaining in the Island, the robe of citizenship 
may be considered by them as an empty honor without practical 
results, simply because their political rights as citizens will not take 
shape in a practical manner so long as their country is kept in the 
condition of a mere subservient piece of territorial property with no 
constitutional rights of representation in the making of the national 
laws. 

On the other hand, it is to be observed that, as American citizens, 



RELATIONS BETWEEN THE UNITED STATES AND PORTO RICO 515 

Porto Ricans are entitled to emigrate to foreign lands, or even to 
expatriate themselves by swearing allegiance to another sovereign; 
they may also, as such citizens, remove into the United States and 
acquire residence and citizenship in any State or Territory thereof, 116 
or they may still decide to remain in Porto Rico and reside perma- 
nently therein. It is to be observed also that while the individual 
Porto Rican may choose to reside in one place or another, the extent 
and enforcement of his rights as such an American citizen are, of 
necessity, more or less controlled, as already suggested, by the status 
of his place of residence in respect to the United States. Thus, his 
rights as such citizen may be viewed from these four different points 
of view: (a) "When residing in a foreign country; (b) when residing 
in a State of the Union; (c) when residing in a Territory of the 
United States; (d) when residing in Porto Rico. 

(a) When residing abroad, there is no question that Porto Ricans, 
as American citizens, are entitled to demand full protection from 
the National Government. In this respect the words of Chief Justice 
Marshall, in 1804, in the case of Murray v. Schooner Charming 
Betsy, 117 are pertinent: 

The American citizen who goes into a foreign country, although 
he owes local and temporary allegiance to that country, is yet, if he 
performs no other act changing his condition, entitled to the pro- 
tection of our government ; and if, without the violation of any muni- 
cipal law, he should be oppressed unjustly, he would have a right to 
claim that protection, and the interposition of the American Gov- 
ernment in his favor would be considered a justifiable interposition. 

What this protection of the citizens abroad means and when and 
on what circumstances and to what extent it will be accorded by the 
interposition of the Government of the United States is another 
question which lies quite outside the scope of this article. It may 
be said, however, that in venturing to go abroad, the citizen enters 
into the sphere of international law and diplomacy, and mainly for 
this reason, he cannot always claim successfully the interposition of 

us "Every citizen of the United States is also a citizen of a State or 
territory. He may be said to owe allegiance to two sovereigns." By Justice 
Grier, in Moore v. Illinois, 14 How. 19. See also Boyds v. Thayer, 143 U. S. 161. 

H7 2 Cranch 64, 120. 



516 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

his own government if he feels aggrieved or injured by the action or 
inaction of the foreign government. Moreover, in this matter of 
diplomatic protection of citizens abroad, it is to be observed that the 
action of the Department of State is, as a rule, controlled by a good 
many reasons affecting not only the legitimate rights of the citizen or 
citizens concerned, but also the national and international policies and 
superior interests of the United States as a nation. It follows, there- 
fore, that this is a matter of much delicacy and discretion depending 
for a determination on all the surrounding circumstances of the case 
which the Department is to weigh and decide. 118 It may not be en- 
tirely amiss to state here that in this matter of diplomatic interposi- 
tion by the Department of State in favor of American citizens abroad, 
there is no distinction whatever to be made between a Porto Bican 
and a Virginian, a Californian, or a New Yorker. In this question, 
as in any other relating to the privileges and immunities of American 
citizenship, all citizens of the United States are exactly upon the same 
legal footing. 

(b) When residing in one of the States of the Union, the in- 
dividual Porto Rican is, as already stated, invested with the full status 
of a citizen of that State. In an early case, 119 decided in 1832, Mr. 
Chief Justice Marshall said that "a citizen of the United States, 
residing in any State of the Union, is a citizen of that State." And 
this view was later incorporated into the opening clause of the Four- 
teenth Amendment to the Constitution: "All persons born or nat- 
uralized in the United States, and subject to the jurisdiction thereof, 
are citizens of the United States and of the State wherein they 
reside. ' ' 

In this respect it may be pertinent to quote the words of Mr. 
Justice Miller in the Slaughter House Cases. 120 Referring to the 
privileges and immunities secured by the Constitution to the citizens 
of the United States, he said : ' ' One of these privileges is conferred 

us See Edwin M. Borchard, "Basic Elements of Diplomatic Protection of 
Citizens Abroad," in this Journal, Vol. VII, pp. 497-520. See also in this con- 
nection a very interesting article by Alpheus Henry Snow in this Joubnal, 
Vol. VIII, pp. 191-212. 

nsGassies v. Ballon, 6 Pet. 761. 

120 16 Wall. 79. 



RELATIONS BETWEEN THE UNITED STATES AND PORTO RICO 517 

by the very Article under consideration. 121 It is that a citizen of the 
United States can, of his own volition, become a citizen of any State 
of the Union by a bona fide residence therein, with the same rights as 
other citizens of that State." 

As a citizen of the State wherein he resides, the individual Porto 
Kican must look to the Constitution and laws of that State in order 
to determine the extent of his rights therein. It must be remembered, 
however, that he is also entitled, under the protection of the National 
Government, to the enjoyment and exercise of these privileges and 
immunities which arise out of his American citizenship. 122 

The right of acquiring residence and citizenship in any State of 
the Union is indeed one of the greatest privileges of the citizens of 
the United States. In this respect it is to be observed that the indi- 
vidual Porto Rican who moves into any of the States, say, for instance, 
New York, with the intention of residing therein, acquires ipso facto 
the legal status of a New Yorker. He is therefore entitled and priv- 
ileged to do, under the same circumstances and upon the same con- 
ditions, any thing which all other New Yorkers may do under the 
Constitution and laws of that State. He is, for all civil and political 
purposes, exactly the equal of the native citizens of that State, and 
thus he may vote and hold public office, and take part in the whole 
civil and political life of the State without molestation, according to 
law. There may be, however, some constitutional or statutory condi- 
tions prescribed for the entire community affecting a whole class of 
citizens, in which he may be included, and affecting his personal 
status, which may deprive him of the enjoyment or exercise of a given 
right or privilege. Thus, for instance, if he were a minor, an idiot 
or a convict, or if he did not possess the necessary qualifications for 
the purpose, he would not be entitled to the political franchise. But 
surely he would not be deprived of any privilege or immunity belong- 
ing to him as a citizen because of any defect or inferiority in his citi- 
zenship, and much less because of the fact that he is a Porto Rican. 

In connection with the electoral franchise as affecting a direct 

121 Fourteenth Amendment to the Constitution, Sec. 1. 

122 For a comprehensive and yet brief study of the privileges and immunities 
of the citizens of the United States, see A. J. Lien, op. cit., supra, note 107. 



518 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

participation in the national politics, it seems interesting to observe 
that, although the right of suffrage is not one of the necessary privi- 
leges of a citizen of a State or of the United States, 123 when the indi- 
vidual Porto Rican, as a citizen of the State wherein he resides, is duly 
qualified to vote at an election at which members of Congress or 
presidential electors are being selected, he has the right, as a citizen of 
the United States, to exercise that privilege freely and without moles- 
tation. Referring to the general subject of the privileges and im- 
munities secured by the Constitution to the citizens of the United 
States, said Mr. Justice Miller in a famous case: 

It is not correct to say that the right to vote for a member of 
Congress does not depend on the Constitution of the United States. 
The office, if it be properly called an office, is created by that Consti- 
tution and by that alone. . . . The States in prescribing the qualifi- 
cations of voters for the most numerous branch of their own legisla- 
ture, do not do this with reference to the election for members of 
Congress. Nor can they prescribe the qualifications for voters for 
those eo nomine. They define who are to vote for the popular branch 
of their own legislature and the Constitution of the United States 
says the same persons shall vote for members of Congress in that 
State. It adopts the qualifications thus furnished as the qualifications 
of its own electors for members of Congress. It is not true, therefore, 
that electors for members of Congress owe their right to vote to the 
State law in any sense which makes the exercise of the right to depend 
exclusively on the law of that State. 124 

(c) When residing in a Territory of the United States, the in- 
dividual Porto Rican is also, according to the established practice of 
the Government and even the decisions of the Supreme Court, a 
citizen of that Territory. 125 He enjoys therefore the same privileges 
and immunities secured to such citizens by the Organic Act and laws 
of the said Territory. 

In this connection it may be useful to notice a fundamental dis- 
tinction in the extent of the powers of the Federal Government, which 
must necessarily affect the rights of the citizen residing therein. This 
distinction is founded upon the equally fundamental distinction be- 

123 "The right of suffrage is not one of the necessary privileges of citizens 
of a State or of the United States." Minor v. Happersett, 21 Wall. 162. 

124 Ex parte Yarbrough, 110 U. S. 651, 662. 

125 Moore v. Illinois, 14 How. 19; Boyd v. Thayer, 143 U. S. 161. 



RELATIONS BETWEEN THE UNITED STATES AND PORTO RICO 519 

tween the powers of the National Government and those which belong 
to the Governments of the various States,— that while the former 
is a government of enumerated powers and specific restrictions, the 
latter are governments of unlimited powers, except only such as have 
been delegated to the National Government or reserved by the people 
of the States to themselves. Thus, while the National Government 
must look to its Constitution to ascertain the extent of its powers, 
the State Governments do not have to do that, but they look to the 
Constitution of the United States and to their own Constitutions to 
ascertain merely the extent of the restrictions imposed by those in- 
struments upon the exercise of their respective unlimited powers. 
There is no question that within their respective spheres of govern- 
mental powers, the National and State Governments are quite exclu- 
sive of each other and possess all the essential attributes of complete 
sovereignty for the successful discharge of their respective functions. 
Thus they can fix the political status and civil rights of their re- 
spective citizens within the extent of their respective powers. 

Eeturning now to the main point under consideration, it may be 
safely assumed that by virtue of a constitutional necessity arising 
from the very nature of the case, in the government of the territory 
of the United States, outside of the States, Congress over and above 
its constitutional functions as the National Legislature, occupies, as 
to the territories, the same position as the State legislatures occupy 
with respect to their respective states. 126 And it must follow there- 
from that in legislating for the territories the powers of Congress 
are quite as unlimited as the powers of the State legislatures are. 127 
But carrying the comparison still somewhat further, the question 
arises whether in the exercise of its functions as a territorial gov- 
ernment, the National Government is to be controlled by the restric- 
tions imposed upon its national powers by the Federal Constitution, 

126 "Congress may legislate for territories as a State does for its municipal 
organizations." First National Bank v. Yankton County, 101 U. S. 129. 

127 "Congress has as full legislative power over the territories as a State has 
over its municipal corporations." Utter v. Franklin, 172 U. S. 416. Further- 
more, "in legislating for the territories Congress exercises the combined powers 
of the General and State Governments. Am. Ins. Co. v. Canter, 1 Pet. 511. 



520 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

just as the State Governments are controlled by their own Constitu- 
tions and the Constitution of the United States. 

Aside from some loose language used in the adjudicated cases to 
the effect that the powers of Congress in legislating for the territories 
are plenary, absolute and complete, there is no question that, so far 
as those provisions of the Federal Constitution which absolutely de- 
prive the National Government of all authority to act upon certain 
specific subjects are concerned, the powers of that Government are 
controlled and restricted by the said provisions, irrespective of time 
and place and are, therefore, controlling in the territories as well as 
anywhere else. 128 

But what about the other restrictions imposed upon the Federal 
Government by the Constitution of the United States ? Do they apply 
in the Territories as well as in the States ? Here Mr. Justice Brown, 
as we have already seen in the consideration of the case of Dowries v. 
Bidwell, 129 said most emphatically No! Mr. Justice White said that 
the whole thing depends upon the status of the territory in question. 
These two different answers to the same question involve, of course, 
two conflicting theories of constitutional interpretation. Mr. Justice 
Brown's theory was that the Constitution does not apply to the 
territories unless and in so far as Congress shall in its wisdom see 
fit to extend it to them ; this theory was, however, rejected by all the 
other members of the court. Mr. Justice "White's theory was that, 
while the Constitution was intended to cover all parts of the United 
States, as composed of States and Territories, yet, in the nature of 
things, it could not apply to such territories as had not been as yet 
incorporated into the United States as integral parts thereof. It is 
evident, however, that, as to those other territories which have been 
already incorporated into the United States, like Alaska or the 
Hawaiian Islands, Congress will be effectively controlled by the Con- 
stitution when legislating for them. 

The first proposition was peculiarly illustrated in the case of 
Hawaii v. Mankichi 130 where it was held that previous to the incor- 
poration of those Islands into the United States, ''the provisions of 

128 Infra, p. 522-3. See also, in this connection, Am. Ins. Co. v. Canter, supra. 

129 Supra, p. 488. iso 190 U. S. 197. 



RELATIONS BETWEEN THE UNITED STATES AND PORTO RICO 521 

the Constitution as to grand and petit juries were not applicable to 
them." 131 The second proposition was also illustrated in a more 
recent Alaskan case, decided by the Supreme Court, in which it was 
held that since Alaska was an incorporated territory, the Constitution 
was applicable thereto, and that under the Fifth and Sixth Amend- 
ments Congress cannot deprive one there accused of a misdemeanor 
of trial by a common law jury, and that Section 171 of the Alaskan 
Code, in so far as it provided a jury composed of six persons for the 
trial of misdemeanors, was unconstitutional and void. 132 

It follows, therefore, that although effectively subjected to the 
complete and unlimited governmental powers of the National Gov- 
ernment as his immediate sovereign, the individual Porto Rican re- 
siding in an incorporated Territory of the United States, such as 
Alaska or Hawaii, will be entirely protected in his rights as a citizen 
both of that Territory and of the United States against any encroach- 
ment by Congress thereon, in so far as the provisions of the Consti- 
tution of the United States may be applicable throughout the United 
States. 

(d) With regard to the fourth and last point of view, namely, 
Porto Eicans residing in Porto Rico, other constitutional conditions 
are to be considered. In the first place, in view of the doctrine of non- 
incorporation, 133 Porto Rico is not a part of the United States, and, 
therefore, the provisions of the Constitution do not apply to the in- 
habitants of the Island except in so far as they operate to deprive 
Congress of power to act at all upon any given matter. 

"While it may be said that Congress has full powers to govern 
that Island without any constitutional restrictions whatever in re- 
spect to such provisions of the Constitution as regulate the powers 
granted to it by that instrument, it must not be inferred from this 
that Porto Rieans residing in the Island are entirely devoid of rights 
under the Constitution which Congress is not bound to respect. In 
this connection it may be useful to quote some excerpts from the 

i3i To the same effect are Dorr v. U. S., 195 U. S. 138, which is a Philippine 
case, and The People of Porto Rico et al. v. Tapia, and The People of Porto 
Rico v. Muratti, supra. 

132 Rassmussen v. U. S., 197 U. S. 516. 

133 Supra, p. 499. 



522 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

opinion of Mr. Justice Brown in the ease of Dowries v. Bidwell, which, 
although referring to a previous condition of Porto Ricans as mere 
inhabitants of newly acquired territory, must apply with greater 
force to their present status as citizens of the United States. Said 
this distinguished judge: 

To sustain the judgment in the case under consideration it by no 
means becomes necessary to show that none of the articles of the Con- 
stitution apply to the Island of Porto Rico. There is a clear distinc- 
tion between such prohibitions as go to the very root of the power 
of Congress to act at all, irrespective of time or place, and such as 
are operative only throughout the United States or among the several 
States. . . . 

We suggest, without intending to decide, that there may be a dis- 
tinction between certain natural rights, enforced in the Constitution 
by prohibitions against interference with them, and what may be 
termed artificial or remedial rights, which are peculiar to our own 
system of jurisprudence. Of the former class are the rights to one's 
own religious opinions and to a public expression of them, or, as 
sometimes said, to worship God according to the dictates of one 's own 
conscience; the right to personal liberty and individual property; to 
freedom of speech and of the press ; to free access to courts of justice, 
to due process of law and to an equal protection of the laws ; to im- 
munities from unreasonable searches and seizures, as well as cruel and 
unusual punishments; and to such other immunities as are indispen- 
sable to a free government. Of the latter class are the rights to 
citizenship, to suffrage, and to the particular methods of procedure 
pointed out in the Constitution, which are peculiar to Anglo-Saxon 
jurisprudence, and some of which have already been held by the States 
to be unnecessary to the proper protection of individuals. 

Whatever may be finally decided by the American people as to the 
status of these Islands and their inhabitants — whether they shall be 
introduced into the sisterhood of States or be permitted to form in- 
dependent governments — it does not follow that, in the meantime, 
awaiting that decision, the people are in the matter of personal rights 
unprotected by the provisions of our Constitution, and subject to the 
merely arbitrary control of Congress. Even if regarded as aliens, 
they are entitled under the principles of the Constitution to be pro- 
tected in life, liberty and property. This has been frequently held by 
this court in respect to the Chinese, even when aliens, not possessed 
of the political rights of citizens of the United States. We do not de- 
sire, however, to anticipate the difficulties which would naturally arise 
in this connection, but merely to disclaim any intention to hold that 
the inhabitants of these territories are subject to an unrestrained 
power on the part of Congress to deal with them upon the theory that 
they have no rights which it is bound to respect. 



RELATIONS BETWEEN THE UNITED STATES AND PORTO RICO 523 

Mr. Justice White's remarks upon this question are also very im- 
portant and clear. In discussing this subject with respect to the 
doctrine by him announced and sustained, he said: 

Albeit, as a general rule, the status of a particular territory has 
to be taken in view when the applicability of any provision of the 
Constitution is questioned, it does* not follow when the Constitution 
has absolutely withheld from the government all power on a given 
subject, that such an inquiry is necessary. Undoubtedly, there are 
general prohibitions in the Constitution in favor of the liberty and 
property of the citizen which are not mere regulations as to the form 
and manner in which a conceded power may be exercised, but which 
are an absolute denial of all authority under any circumstances or 
conditions to do particular acts. In the nature of things, limitations 
of this character cannot be under any circumstances transcended, be- 
cause of the complete absence of power. 

The distinction which exists between the two characters of re- 
strictions, those Which regulate a granted power and those which 
withdraw all authority on a particular subject, has in effect been 
always conceded, even by those who most strenuously insisted on the 
erroneous principle that the Constitution did not apply to Congress 
in legislating for the territories, and was not operative on such dis- 
tricts of country. ... 

There is in reason then no room in this case to contend that Con- 
gress can destroy the liberties of the people of Porto Rico by exercis- 
ing in their regard powers against freedom and justice which the 
Constitution has absolutely denied. 

There is no doubt, however, that in the matter of such rights as 
are not secured to the citizen by specific prohibitions of the Consti- 
tution operating upon the powers of Congress to act at all irrespective 
of time and place, the civil and political rights of Porto Ricans re- 
siding in the Island are to be determined and measured only by the 
Organic Act which Congress shall in its wisdom be pleased to give 
to the Island, 134 and by the laws which may be enacted by the Legis- 
lature of Porto Rico thereunder. 135 

134 See Murphy v. Ramsey, 114 U. S. 15, cited in Downes v. Bidwell, supra. 

135 Owing to the restrictive nature of this Journal, we must leave for con- 
sideration elsewhere the Government of Porto Rico under Spain and the two 
Organic Acts so far enacted by Congress for the Island, as well as the Porto Rican 
problem which is now confronting the American people, and its possible solution 
in the near future. See "Some Historical and Political Aspects of the Govern- 
ment of Porto Rico," in The Hispanic-American Historical Review, Vol. II, No. 4. 



524 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

As showing the real attitude of Congress towards the inhabitants 
of Porto Rico in respect to these matters, reference will be made to 
the Bill of Rights inserted in the recent Organic Act adopted for the 
Island, in which it is expressly provided: 

That no law shall be enacted in Porto Rico which shall deprive 
any person of life, liberty, or property without due process of law, 
or deny to any person therein the equal protection of the laws. 

That in all criminal prosecutions the accused shall enjoy the right 
to have the assistance of counsel for his defense, to be informed of the 
nature and cause of the accusation, to have a copy thereof, to have a 
speedy and public trial, to be confronted with the witnesses against 
him, and to have compulsory process for obtaining witnesses in his 
favor. 

That no person shall be held to answer for a criminal offense with- 
out due process of law ; and no person for the same .offense shall be 
twice put in jeopardy of punishment, nor shall be compelled in any 
criminal case to be a witness' against himself. 

That all persons shall before conviction be bailable by sufficient 
sureties, except for capital offenses when the proof is evident or the 
presumption great. 

That no law impairing the obligation of contracts shall be enacted. 

That no persons shall be imprisoned for debt. 

That the privilege of the writ of habeas corpus shall not be sus- 
pended, unless when in case of rebellion, insurrection, or invasion, the 
public safety may require it, in either of which events the same may 
be suspended by the President, or by the Governor, whenever during 
such period the necessity for such suspension shall exist. 

That no ex post facto law or bill of attainder shall be enacted. 

Private property shall not be taken or damaged for public use 
except upon payment of just compensation ascertained in the manner 
provided by law. 

Nothing contained in this Act shall be construed to limit the power 
of the legislature to enact laws for the protection of the lives, health 
or safety of employees. 

That no law granting a title of nobility shall be enacted, and no 
person holding any office of profit or trust under the Government of 
Porto Rico shall, without the consent of the Congress of the United 
States, accept any present, emolument, office, or title of any kind 
whatever from any king, queen, prince, or foreign state, or any officer 
thereof. 

That excessive bail shall not be required, nor excessive fines im- 
posed, nor cruel and unusual punishments inflicted. 

That the right to be secure against unreasonable searches and seiz- 
ures shall not be violated. 



RELATIONS BETWEEN THE UNITED STATES AND PORTO RICO 525 

That no warrant for arrest or search shall issue but upon probable 
cause, supported by oath or affirmation, and particularly describing 
the place to be searched and the persons or things to be seized. 

That slavery shall not exist in Porto Rico. 

That involuntary servitude, except as a punishment for crime, 
whereof the party shall have been duly convicted, shall not exist in 
Porto Rico. 

That no law shall be passed abridging the freedom of speech or 
of the press, or the right of the people peaceably to assemble and peti- 
tion the Government for redress of grievances. 

That no law shall be made respecting an establishment of religion 
or prohibiting the free exercise thereof, and that the free exercise 
and enjoyment of religious profession and worship without discrim- 
ination or preference shall forever be allowed, and that no political 
or religious test other than an oath to support the Constitution of the 
United States and the laws of Porto Rico shall be required as a quali- 
fication to any office or public trust under the Government of Porto 
Rico. 

That no public money or property shall ever be appropriated, ap- 
plied, donated, used, directly or indirectly, for the use, benefit, or 
support of any sect, church, denomination, sectarian institution or 
association, or system of religion, or for the use, benefit, or support 
of any priest, preacher, minister, or other religious teacher or digna- 
tary as such, or for charitable, industrial, educational, or benevolent 
purposes to any person, corporation, or community not under the 
absolute control of Porto Rico. Contracting of polygamous or plural 
marriages hereafter is prohibited. 

That no money shall be paid out of the treasury except in pur- 
suance of an appropriation by law, and on warrant drawn by the 
proper officer in pursuance thereof. 

That the rule of taxation in Porto Rico shall be uniform. 

That all money derived from any tax levied or assessed for a 
special purpose shall be treated as a special fund in the treasury and 
paid out for such purpose only, except upon the approval of the Pres- 
ident of the United States. 

That eight hours shall constitute a day's work in all cases of 
employment of laborers and mechanics by and on behalf of the Gov- 
ernment of the Island on public works, except in cases of emergency. 

That the employment of children under the age of fourteen years 
in any occupation injurious to health or morals or hazardous to life 
or limb is hereby prohibited. 

Pedro Capo-Rodri'guez. 



LIBRARY OF CONGRESS 




